MUNCIE, Ind. — The Ball State University board of trustees talked about the "Papa John" Schnatter controversy during a private dinner meeting in Indianapolis on July 19.

While it would appear the meeting didn't violate the Open Door Law, "it just doesn't look good" and it "raises something of a red flag," according to a legal expert on that law. Another observer believes the meeting violated "the spirit of the law."

After Chairman Rick Hall issued a statement on Aug. 3 expressing the board's continued support of Schnatter — under fire for quoting Colonel Sanders' alleged use of the N-word — a Ball State faculty member questioned how the board made the decision to stand by BSU's notable alumnus and donor.

"When did the trustees make their decision about Mr. John Schnatter?" telecommunications professor Dom Caristi asked The Star Press. "Was that part of a public meeting? Did they meet in violation of Indiana Open Door Law? Even if the matter they were to discuss is exempt from Open Door, that information — the fact that they were having a closed door meeting — would have to be announced at a public meeting."

Hall declined to be interviewed for this story. He explained why in a written statement that referred to the backlash against the trustees' decision, which a spokesperson for the board said was not really a decision at all.

The university has gotten hundreds of responses, both pro and con, to Hall's Aug. 3 statement. One of the most recent was from 20 concerned black faculty, whose Aug. 8 letter to the trustees closed with, "In solidarity," above their names.

The group said the board's response was more disappointing than the remarks of Schnatter, who has "exhibited a pattern of racially charged statements." "This response suggests specifically to black faculty that our presence and contributions to this university are insignificant."

Other groups condemning the response, through their leaders, include the Black Student Association and Student Government Association. The Asian American Student Association, Latinx Student Union and Spectrum issued a joint statement standing behind the Black Student Association.

The black faculty letter noted that Purdue University, the University of Louisville and other institutions "readily made decisions to sever ties with Mr. Schnatter, rejecting the troubling pattern of racially insensitive behavior that he has demonstrated … "

Hall's statement to The Star Press read:

"Clearly this situation continues to focus our attention and there are many important conversations that need to be had. We believe dialogue is the most productive path to mutual understanding on important issues like this one. While I appreciate the opportunity to speak with you, it would not be appropriate for me to talk with the media before these important conversations first take place within the campus community. I appreciate your understanding."

This is what The Star Press has learned about the board's activities before it issued the Aug. 3 response:

"Starting July 11th, Chair Hall and the other trustees began informal conversations with many concerned stakeholders as Mr. Schnatter is an alum of the university and his family foundation is a financial supporter of the university," board spokesperson Kathy Wolf told The Star Press via email. "Informal conversations have continued … "

The university issued general statements on July 12 and July 18.

Ball State trustees talked about the "Papa John" controversy in a private dinner meeting at the Conrad Indianapolis on July 19.(Photo: Charlie Nye/IndyStar)

Unrelated to the Schnatter controversy, the board, months ago, scheduled a board retreat to be held at the Conrad Indianapolis hotel on July 20. The board issued notice to the newspaper and others of three board meetings during the retreat: an executive session at 4 p.m. on July 19; the board retreat starting at 8 a.m. on July 20; and another executive session at 2 p.m. on July 20.

"After the first executive session, on July 19th, the board socially gathered over a meal," Wolf wrote. "Many topics were discussed during the meal, including issues impacting all of higher education as well as matters transpiring at other universities, such as the University of Louisville and the University of Kentucky. Both of which had announced decisions only days earlier with respect to Mr. Schnatter."

Did the trustees discuss Ball State, too, or just Louisville and Kentucky?

Wolf: "As I have already indicated to you, the board of trustees discussed many issues associated with higher education including the matter about John Schnatter that was facing many institutions including our own. The trustees did not make any decisions at that gathering. To the contrary, Mr. Hall continued to have multiple conversations with the trustees prior to issuing his statement on August 3.

"… The August 3rd statement indicating the board would continue support of the John H. Schnatter Institute of Entrepreneurship and Free enterprise (on the BSU campus) was not a change requiring action."

In a separate email Q&A, Wolf went on, "Let me emphasize the continued support of the (Schnatter) institute did not require a decision to be made."

Kathy Wolf; Vice President of Marketing and Communications at Ball State University.(Photo: Ball State University)

Luke Britt is the Indiana Public Access Counselor, appointed in 2013 by Gov. Mike Pence to serve in the non-partisan position "dedicated to preserving the access rights of the public and educating government officials on their responsibilities under Indiana’s access laws."

" … I don't know that something not on the table would need final action," he told The Star Press via email. "Moreover, the individual conversations are not troubling either. One-on-one conversations are OK."

But he added:

"The part that raises something of a red flag to me is the seemingly casual approach to what is considered a social gathering. I have no problem whatsoever about them going to a meal, but any conversation about higher education would be immediately adjacent and germane to a trustee’s official capacity.

"If they were to ask my take, I would caution as to optics as well. It just doesn’t look good for a governing body to go to dinner immediately before or after public business is being discussed in an open meeting or executive session. It raises the perception that the conversation is related to that public business and indeed it would be difficult to keep it purely social especially when something as high profile and newsworthy as the Papa John’s issue is percolating.

"So while I don’t see an outright violation, it throws up some warning signs."

Luke Britt(Photo: Provided)

Caristi, the Ball State telecom professor, is co-author of a textbook, "Communication Law," which includes a chapter on access.

"If the trustees provided legally adequate notice of the retreat, they may have been operating within the letter of the Indiana Open Door Law, but certainly not the spirit," Caristi told The Star Press. "The law intends to make government action, like that taken by the trustees, as transparent as possible. This has not been done. Was a vote taken? Who spoke in favor? What arguments were made? Like the 'sudden departure' of President Ferguson, I guess we'll never be told."

Dom Caristi(Photo: Photo provided by Ball State University)

Former BSU President Paul Ferguson's sudden and mysterious "resignation," after less than two years on the job, occurred during a special meeting of the board of trustees in Indianapolis in early 2016.

The trustees were criticized by many faculty and students for the lack of transparency in Ferguson's ouster.

The Star Press has been unable to reach the current president of Ball State's University Senate, Tarek Mahfouz, an associate dean and associate professor of construction management, for comment on whether the Senate might weigh in on the controversy.

Some have asked Faculty Council Chair Yaron Ayalon, an assistant professor of history, whether or not the council will take up the issue at its first meeting on Sept. 6.

"My response was that any member of the council may bring it up under new business once we are done discussing other items already on the agenda, or during the Q&A with the provost," Ayalon told The Star Press. "Faculty may also wish to bring it up during a University Senate meeting."

The controversy is a complex matter, he said.

"Schnatter behaved in a way that does not fit the core values of our university, and one may question whether being aligned with him and continuing to accept his money is appropriate," Ayalon said via email. "On the other hand, it is not outrageous to question whether one incident of poor choice of words, taken, according to some, out of context, justifies severing ties with a donor.

"In practice, such a decision would have meant ending the entire Schnatter-Koch cooperation with the university, which would have meant a substantial financial loss, the implications of which, as far as I understand, would have been profound — people were hired, at least one in a tenured position, the university made long-term commitments, etc."

Personally, Ayalon does not believe that "long discussions that lead to non-binding resolutions that then yield no action is a very good use of our council’s time. As chairperson, I’d say members are free to bring this issue up and propose motions as they see fit."

Yaron Ayalon(Photo: Ball State University)

Ball State's English Department faculty is circulating a letter to trustees expressing concern that "you did not take the time to listen to our students and colleagues' opinions about the issue. We hope you are all revisiting your decision."

Wolf, the board of trustees spokesperson, told The Star Press:

" … Ball State has always been a collaborative campus. We acknowledge there are mixed reactions to the board’s statement. It is important that we listen to everyone who cares about Ball State University …

"The university leadership looks forward to having meaningful, productive conversations with a wide variety of constituents, including those you reference in your questions. Those conversations are yet to be had …

"The bottom line is that we believe we will come together on this issue through respectful, collaborative conversations. We hold to the truth that it’s OK to disagree, but we must keep talking. Understanding these issues requires us to understand each other. We are committed to reaching that understanding together."